36 A.D. 196 | N.Y. App. Div. | 1899
This is the second trial of this action pursuant to an order of the-Appellate Division reversing a judgment dismissing the complaint and directing a new trial. The complaint was dismissed on the first trial because of the failure of the plaintiff to prove that, before the commencement of the action, he presented to the defendant O’Neill an architect’s certificate showing that the work had been completed according to contract, the contract containing a provision requiring that to he done before the obligation to pay the plaintiff should mature. The action was not brought, in terms, upon the contract, the complaint being cast in the form of an action to foreclose a mechanic’s lien predicated upon a quantnom meruit. The answer, while averring that the work was done under a written contract, does not set forth the terms of the contract, nor does it in any way refer in specific terms to a failure to comply with this stipulation. The ground of reversing was apparently twofold: First, that the question was not raised at the trial, and that if the attention of the plaintiff had been called to the objection, it might have been obviated by proof of a waiver of the alleged condition; 'second, that the evidence would have justified a finding that there was such a waiver. (Hartley v. Murtha, 5 App. Div. 408.) At page 411 the court says : “ The contract required a certificate to be made as a condition of the payment of the first as well as the last installment for the work and materials, and yet the $1,000 in cash was paid and the $1,000 note was given without requiring the certificate, and when this action was begun O’Neill made no objection by reason of the non-production of the certificate. He did not ask that a certificate be obtained. He said nothing whatever about a certificate, but contented himself with complaining- about the work itself. . These facts fairly construed would have justified a finding that there had been a waiver of the condition precedent of furnishing a certificate, even if such condition under the terms of this contract existed. It seems to' us that upon the facts disclosed in this case the learned trial court erred in dismissing the complaint on the merits. The materials had all been furnished and the work had all been properly done before the action was commenced. The plaintiff was entitled, to be paid the balance of the contract price, what
I do not think, However, that the plaintiff has established a valid lien upon the property as against the owner, Sophia Murtha. The claim for such a lien is predicated upon a lease made by her to the defendant O’Neill, which contains the following provisions: First, the usual covenant that the tenant will not make any alterations in the premises “ without the written consent of the said party of the first part (the lessor) under the penalty of forfeitnre and damages ; ” second, a special provision which reads as follows : “ Whereas said party of the second part covenants to make for his convenience on or before September 1st, 1893, certain alterations and extraordinary repairs to said premises of the value of at least about five thous- and dollars, which will materially modify said building, it is hereby agreed in consideration of the premises, that all such improvements, alterations and repairs will be of a substantial character and quality and done by and with the consent and approval of said party of the first part, the plans and specifications thereof to be first submitted to her, and that all such improvements when completed shall belong to and become the absolute property. of said party of the first part, except the movable bar, fixtures pertaining thereto, chandeliers and such like detachable fixtures.” The lease in a subsequent clause further provided that the party of the second part “ is also to comply with all the orders, rules, regulations and requirements of the board of health, fire and municipal authorities of the city of New York, relating to said premises, and to save and protect said party of the first part harmless therefrom.” It is contended that this stipulation involves such a consent by the owner withing the meaning of the Mechanics’ Lien Law as to subject her property to any lien which may he filed pursuant to that law for work done and materials furnished in carrying out the contemplated improvement. In Cowen v. Paddock (137 N. Y. 188) the court says (p. 193): “ While it is doubtless true that the